Issues Raised by Randy Construction
The scenario presents a contractual conflict between Randy Construction from Good Building Company Pty Ltd and the Roy Campbell, representative from National Defense Association. After going through rigorous and competitive tendering and bidding process for the construction project for the National Defense Association, Good Building Company wins the tender. However, upon receiving the contract, they realize that there are some clauses that are not fairly constituted to govern the construction process. Therefore, a renown mediator, this report presents the negotiation process that will lead to peaceful reconciliation between the two conflicting parties.
As the Randy Constructions raises the issue at hand and inform Roy Campbell of the aggravating issues the company has noticed with the construction contract they have just been awarded, he’s composed and easy to engage in a fruitful conversion with expectation of reaching to a consensus. By how Randy introduces himself and then systematically proceed to explain the contentious clauses with the contract, he displays high level of conscientiousness. He treats Roy with respect, despite the fact that his company is the aggravated party in the engagement. Disputes often raise the emotions and, in most cases, the offended tends to display emotions by acting spontaneously to matters that would rather escalate or jeopardize negotiation process.
Roy Campbell on the other hand portrays the exact opposite of who Roy is, after introductions he responds arrogantly with a pre-informed mentality. He thinks that being a member of the forces grants him privilege and advantage over others. The matter for negotiation or discussion is construction and business related and has nothing to do with the military expirations. Roy is not accommodating at first, for instance, he tells Randy that the project is about construction for the National Defense Association and ask whet he expected. This is a toxic trait or personality to display in any negotiation engagement because it can only fuel the conflict instead of propelling negotiations towards peaceful resolution.
Starting off a negotiation often unpleasant effects such as overwhelming anxiety and feeling nervous. These are normal things that normally happen even to professional negotiators. In the context of the presented conflict, Randy utilized an effective technique to start of the conversation without triggering anxiety or emotional feeling towards his counterpart. Randy employs reframe anxiety in the negotiation thus setting stage for a healthy and best negotiation techniques that would see them into a consensus. Randy anchors his arguments on the content of the contract thus anchoring the negotiation with reference agreement between the two parties. And most importantly, Randy put a request fairness on the contract prepared by the National Defense Association, this shows that he’s ready to work on way that would bring fairness in the contract, revise the clauses to favor both parties.
Negotiation processes often evoke variety of emotions, especially anger and fear depending on the status or nature of the disputed issue (Abdul-Malak et al. 2019, p.22). In most instances the aggrieved tends to display anger and frustration with hard stance in initial stages of negotiations, surprisingly, Randy, who represent the aggrieved party displays sobriety and self-composer with no fear or anger towards Roy who have disadvantaged their engagement in the project. Roy on the other hand displays the obvious, he expresses pride and arrogance in the negotiation instead of soberly explaining to Roy the reason why they included the two clauses on payment and variations in the contract. Emotion control is very vital in negotiations because uncontrolled emotions can worsen or escalate conflict thus jeopardize dispute resolution process.
Roy Campbell’s Response
There several dispute resolution techniques and the choice of negotiation technique used in the dispute resolution varies with the situation and nature of the conflict. According the conflicting issue between Good Building Company Pty Ltd and the National Defense Association could be resolved through the following negotiation techniques.
Arbitration negotiation technique involves the efforts of a third party to the conflicting parties and act as the middle person who work on mechanism to unite the parties (Senan, et al. 2018, p.35). The third party to negotiation could be an individual or group of individuals with the interest of uniting the conflicting parties. With this approach the arbitrator will have to listen to the both parties and portrays high level of neutrality while negating the parties. For instance, the designate arbitrator has to listen the aggrievances levied by Good Building Company Pty Ltd and also listen to National Defense association through their representative independently and separately. Then have check on the disputed contract to help in making rational judgment that would result to conflict resolution.
The sole responsibility of the arbitrator is to help the two conflicting parties, Randy and Roy to engage in sober conversation amongst themselves and come into agreeable terms that would solve the stalemate in the contractual clauses. This would be best option for finding a solution to the conflict since Roy seems overtaken by his position and doesn’t want to tolerate the opinions and ideas coming from Randy just because they are the National Defense Association. However, in extreme situations the decision for on the conflict resolution can be made by the arbitrator only when the conflicting parties fail to come to a mutual agreement.
Conciliatory is another applicable negotiant or dispute resolution approach that can be adopted in the given conflict between Good Building construction company and the National Defense Association on contractual clauses. A conciliator takes charge of the dispute resolution process and implement negotiation skills that would lead to peaceful resolution (Saeb et al. 2021 p.17). It is recommended that conciliator should be person or individuals who has demonstrated high standards of impartiality or fairness in negotiations as they are supposed to aid, monitor and oversee the reconciliation process. Conciliator has to work with the conflicting parties to identify the source or cause of the dispute, develop opinions, list alternative and help the parties reach an agreement that is satisfying to all.
In the context of the given scenario (Roy and Randy), the conciliator should take an active advisory role in reconciliation process while outlining both legal and factual aspects of the case to instigate sense of sobriety in dissolution. In most instances, the conflicting parties are often caried by the emotional feeling to a point that they fail to consider the legality of the matter at hand as well as the impacts the case could have on parties if it takes legal direction. For instance, the clauses added by the National Defense Association are contrary to the Building Standards and Laws of Contract in Construction sector, therefore, if Good Building Company Pty Ltd decides to take the matter to court, they NDA will be liable and may be forced to compensate the company. These among other advisory roles, a conciliator is supposed to offer in the negotiations.
Effective Negotiation Techniques by Randy Construction
Case appraisal is more alike with the arbitration but the third party involved in negotiation is referred to case appraiser. The responsibility of the case appraiser is to help the conflicting parties resolve the dispute by providing a non-binding opinion on the facts and the likely outcomes. The non-binding opinions offered by case appraiser might include advices on the next steps for consideration in case the presently utilized method fails to yield resolution. This technique is preferred because it is quick process for finding solution to non-complex disputes. However, the appraiser has to be an individual with reputable character and good record of appraising on similar or related cases.
According the introduction and the conversation Randy has had with Roy suggest that he is adamant to listen to what he had to say regarding the contract thus it is appropriate seek the services of appraiser to help resolve the issue. Probably by explaining to Roy the legal consequences on the situation might change his perception and allow resourceful negotiation that could eventually lead to mutual agreement between the company and the defense association.
In reference to the situation at hand or rather the disputed clauses, he ideal solution for both parties to reconsider their position and get back to the drawing board and mutually redesign the contractual clauses that favors both parties. The situation can result to financial implication is take legal cause and the National Defense Association might be forced pay for damages in form of compensation or if the project starts without revising the disputed clauses it might negatively impact the working relationship between these two parties. Therefore, to start on the right foot, the disputing clauses needs revision to accommodate mutual interest.
The call to revise the disputing clauses would need compromises from both parties, for instance to come to a mutual agreement, both the Good Building Company Pty Ltd and the National Defense Association have to drop their hard stances and enter into negotiation with open mind to accommodate proposals by the arbitrator, conciliator or appraiser depending on the resolution technique considered.
Reaching a consensus will greatly impact the relationship between conflicting parties. By allowing to engage in negotiation will build a strong trust and confidence that will impact the progress and implementation of the project thus boosting the overall outcome of the project. For instance, Good Building Company Pty Ltd will trust their client and in case there are other issues during project implementation they will graciously approach for discussion without bad blood between them.
References
Abdul-Malak, M.A.U. and Senan, M.H., 2020. Operational mechanisms and effectiveness of adjudication as a key step in construction dispute resolution. Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, 12(1), p.04519051.
Alaloul, W.S., Wirahadikusumah, R.D., Hasaniyah, M.W., Tayeh, B.A., Hasiholan, B. and Kusumaningrum, P., 2019. A comprehensive review of disputes prevention and resolution in construction projects. In MATEC web of conferences (Vol. 270, No. 270 (2): 05012). EDP Sciences.
Besaiso, H., Fenn, P. and Emsley, M., 2018. Evolution of construction arbitration. Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, 10(2), p.04518001.
Bhole, N.B., Gupta, A.K. and Desai, D.B., 2022 Dispute in Construction and Their Settlement-A Review.
El-Sayegh, S., Ahmad, I., Aljanabi, M., Herzallah, R., Metry, S. and El-Ashwal, O., 2020. Construction disputes in the UAE: Causes and resolution methods. Buildings, 10(10), p.171.
Jagannathan, M. and Delhi, V.S.K., 2019. Litigation proneness of dispute resolution clauses in construction contracts. Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, 11(3), p.04519011.
Kisi, K.P., Lee, N., Kayastha, R. and Kovel, J., 2020. Alternative dispute resolution practices in international road construction contracts. Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, 12(2), p.04520001.
Saeb, A., Mohamed, O.B., Danuri, M.S.B.M. and Zakaria, N.B., 2021. Critical factors for selecting a neutral to support alternative dispute resolution methods in the construction industry. Civil Engineering Journal, 4(1), pp.11-23.
Senan, M.H., Alzaghrini, N. and Srour, I., 2018. Mediation tactics and effectiveness in dispute resolution. Responsible Design and Delivery of the Constructed Project.
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